Matthew T. Mangino: A farewell and a warning

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Jan 13, 2017 at 10:33 AMJan 13, 2017 at 10:33 AM

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This week President Barack Obama gave his farewell address. Presidential historian Douglas Brinkley described the run up to the speech as “the most highly publicized farewell address in American history.”

That is no surprise. The most famous of all presidential farewells was that of George Washington. The father of our country didn’t actually make a speech, but his words helped shape the country we have today.

Washington used the 32-page address, published on Sept. 19, 1796, to explain his “rationale for leaving the presidency, despite pressure from the public and others in government to seek a third term in office,” reported History.com. That decision set a precedent that was followed until Franklin D. Roosevelt ran for a third and fourth term during World War II. More importantly, the decision protected America from the dangers of tyranny.

President Obama may have viewed his speech as doing the same when he said, “Democracy can buckle when it gives in to fear.”

Another poignant passage of his speech was when he spoke of the U.S. Constitution. “Our Constitution is a remarkable, beautiful gift ... But it’s really just a piece of parchment. It has no power on its own. We, the people, give it power. We, the people, give it meaning — with our participation, and with the choices that we make and the alliances that we forge.”

However, if recent history is any measure, Americans are more apt to surrender their liberties than fight to protect them. For instance, the price of falling crime rates. Experts may not say it and the average American may not admit it, but decreasing crime rates have come at a precious cost — the sacrifice of personal liberty.

We have altered our lifestyles and fortified our homes in the name of security. Homes and businesses across the country have taken measures to become more secure. What was once considered extreme is now commonplace — security systems, spot lights, motion detectors, metal gates over front doors, video surveillance, car alarms, mace, pepper spray, stun guns, handguns, personal self-defense training, even architectural design with crime prevention in mind.

In America, citizens have also passively watched their constitutional rights disappear in the service of security, largely without protest and often while still celebrating the land of the free and the home of the brave, suggested Peter Van Buren, author and former member of the United States Foreign Service, in Mother Jones.

In the 1960s, the Warren Court, fearing new forms of surveillance, expanded the protections of the Fourth, Fifth and Sixth Amendment. Those decisions dealing with pre-arrest detention, right to counsel, Miranda and the exclusionary rule were recognized as fundamental rights.

The post–Warren Courts, due to their concerns about rising crime rates, limited those protections. As it has in the past, the debate over the interpretation of the Constitution will continue to be a point of contention and be “subject to change based on the shifting social and political views of the members of the Supreme Court,” wrote Orin Kerr on the SCOTUSblog.

President Obama’s warnings are relevant, but may be too little too late. With regard to the ever-shrinking protections of the Constitution, President-elect Donald Trump will make at least one appointment to the Supreme Court and that appointment will shift the balance of power and the “social and political views” of the court.

More importantly, Obama’s warnings are, in some ways, contrary to the policies he continued or adopted as president. During his presidency, due process was manipulated in a way that seemed to authorize torture, indefinite detention without charge and even government-sponsored murder of American citizens. As Van Buren wrote, “Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of ‘self-defense.’”

With the inauguration of a new president only days away, will the emasculation of the due process continue?

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.